War and the environment
THE word environment per se did not appear in international law until the latter part of the 20th century.
Be that as it may, since the inception of modern warfare, international treaties have attempted to create and implement legal provisions addressing the growing problem of environmental damage resulting from armed conflict. Unfortunately, international acceptance and enforcement of such provisions arrived only in incremental responses to the horrors of previous wars.
From the standpoint of customary law, environmental protection during wartime maybe inferred from the general protection of the civilian population based on the fundamental rule expressed in the 1868 Declaration of St. Petersburg that military action of States should be limited to the objective of weakening the military force of the enemy.
And then, of course, there are the principles of necessity, proportionality, discrimination and humanity embedded in the law of war. Furthermore, the famous Martens Clause holds that in cases not covered by specific provisions, civilians and combatants are covered by the principle of humanity and the dictates of public conscience.
The Geneva and Hague conventions
The Geneva Conventions is a body of treaties governing the behavior of belligerents and provide various degrees of protection of combatants, prisoners of war and civilians.
During the 1970s, three conventions were added to the Geneva Conventions. Those are: 1) 1976 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (Enmod). It addresses instances where the natural environment itself is deliberately manipulated to cause destruction.
In so doing, it outlaws damage to the environment resulting from the use of such methods, contemplating techniques like the alteration of atmospheric conditions to alter weather patterns, earthquake modification and ocean current modification (tidal waves, etc.), not including low technology methods such as river diversion or the destruction of a dam.
Take note that during the 1991 Gulf War, oil wells were not considered a natural process, hence, setting them ablaze is not an environmental modification technique within the scope of Enmod; 2) the 1977 Additional Protocol on Protection of Victims which applies to International wars; and 3) the 1977 Additional Protocol on the Protection of Victims of Non-international Armed Conflicts (internal conflicts).
These later instruments were the first to explicitly protect the environment in response to the Vietnam War in which the US used Agent Orange to conduct a large-scale defoliation campaign in their hunt for the Viet Congs but resulted also in birth defects in children conceived or born during the time the dangerous chemical was used.
But along the same line, the US expects to make a transition from lead ammunition to bullets made of tungsten and tin or tungsten and nylon, removing a large source of lead pollution in the environment. In that connection, mention should be made of the Kosovo armed conflict which saw the first use of bombs that deploy graphite filaments designed to take a power grid off-line without completely destroying generation facilities.
But weapons choices, such as uranium munitions and cluster bombs, remain controversial for their indiscriminate impact not only on people but the environment as well.
Positive law on war and the environment
Among existing positive laws on war and the environment, two others of great significance in terms of coverage should be pointed out. There is a provision in the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict for the marking of cultural property with a special emblem. For this purpose, it maintains an International Register of Cultural Property under Special Protection.
The first entry in the Register is one monumental complex, the whole of the territory of the Vatican City State. Hopefully, the blue and white marking under the convention will be utilized in the same way as the Red Cross marking, which was extensively used during armed conflicts in the past.
The 1972 Convention for the Protection of the World’s Cultural and Natural Heritage, on the other hand, requires parties to take steps to identify and transmit to future generations the cultural and natural heritage within their territories. Cultural and natural areas of outstanding universal value are eligible for listing on the World Heritage List and establishes the World Heritage Fund to assist countries with establishing and conserving World Heritage Sites.
The World Heritage Sites have grown to more than 600 listed sites around the world. Their protection in armed conflict entails the preparation of detailed maps, elaboration of materials on international heritage protection during armed conflict for dissemination and the formulation of guidelines for military manuals to make protected areas free of weapons.
The State involved in the exercise of territorial sovereignty should not maintain military installations or conduct military activities in the protected areas. In short, states cannot invoke protection of an area in order to store munitions or even to house military personnel, and the like.